PARLANGE, District Judge (after stating the case as above). I take it to be clear that plaintiff in error has abandoned the assignment of error No. 1. The language of the brief for plaintiff in error (page 3) can have no other meaning. See American Fibre Chamois Co. v. Buckskin Fibre Co., 18 C. C. A. 662, 72 Fed. 508. Assignment of error N’o. 2, which addresses itself to the refusal of the trial judge to direct a verdict in favor of the railway company, is without force.

The reason given for asking a peremptory instruction shows that the request was based upon the erroneous theory that Reeder was bound to remain constantly in the caboose, without regard to the fact whether the train was in motion or not. It is, of course, evident that, if Reeder had ridden in the caboose during the whole trip, the particular accident which befell him would not have happened; but, under the contract, be bad the right to care for his stock, and the only restriction which the company placed upon Ms actions in that respect was that he should not attend'to the stock while the train was in motion.

This case was clearly not one in which it would have been proper for the trial judge to have directed a verdict. There was a conflict of evidence, and sufficient testimony, if believed by the jury, to sustain a. verdict in favor of Reeder. The credibility of witnesses is matter for the jury.

All the other assignments of error ave, in the same manner as assignment of error No. 2, open to the fatal objection that they assume that Reeder had no right to leave the caboose; whereas, if the car was stationary, and his cattle needed attention, and he proceeded to care for them in a prudent manner, and he was then injured by the fault of the railway company, there is nothing in the law or in the contract to prevent him from recovering. The charge of the trial judge stated the issues and the law fairly and clearly. The question of fact was left to the jury, as it should have been.

There is no error in the case, and, for the foregoing reasons, I concur in the judgment of the court affirming the judgment of the lower court.